Case 1:15-cv-00684-BAH Document Filed 09/21/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 15-cv-684 (BAH)
PLAINTIFF OPPOSITION DEFENDANT MOTION
STAY PENDING RESOLUTION ITS MOTION FOR
DESIGNATION COORDINATING JUDGE
Plaintiff Judicial Watch, Inc., counsel, respectfully submits this opposition the
motion for indefinite stay Defendant U.S. Department State State Department
grounds therefor, Plaintiff states follows:
MEMORANDUM LAW
The State Department motion for indefinite stay proceedings should
denied. has presented evidence whatsoever demonstrating that stay necessary.
This case involves Freedom Information Act FOIA request from Plaintiff the State Department seeking all emails official State Department business received sent former Deputy Chief Staff Huma Abedin from January 2009 through February 2013
using non-state.gov email address. June 24, 2015, the parties filed Joint Status Report. that time, the State
Department proposed
that productions conducted rolling basis, with productions
beginning August 31, 2015 and continuing every sixty days
thereafter, with anticipated completion date January 29,
Case 1:15-cv-00684-BAH Document Filed 09/21/15 Page
2016. This completion date reflects the Department State
belief that conducting searches for records responsive Plaintiff
FOIA request will require searching, among other locations, the
approximately 55,000 pages emails provided the State
Department former Secretary Clinton from her non- state.gov
account. Per court order Leopold U.S. Dep State, Case
No. 15-cv-123-RC (D.D.C.), the production the approximately
55,000 pages emails set begin June 30, 2015, continue
every thirty days thereafter, and conclude January 29, 2016.
The Court adopted the State Department proposal and, June 25, 2015,
ordered the State Department begin making rolling productions August 31, 2015 and
continue making them every sixty days thereafter until January 29, 2016.
The State Department now seeks stay the production schedule proposed and
the Court adopted. satisfy the Court order, appears though the State Department intends
conduct searches and produce records from the following three sets records: Records contained within the state.gov email accounts current and
former State Department employees; The approximately 55,000 pages records returned former
Secretary Clinton; and The records returned Ms. Abedin.
Although somewhat unclear, the State Department seeks partial stay.
Specifically, the State Department seeks stay the searches and productions from two sets
records: the approximately 55,000 pages records returned former Secretary Clinton and the
emails returned Ms. Abedin.1 Plaintiff understanding that the State Department will continue searching and
producing records responsive Plaintiff FOIA request that are located within the state.gov
email accounts current and former State Department employees.
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Case 1:15-cv-00684-BAH Document Filed 09/21/15 Page
The indefinite stay should denied for two reasons. First, the State
Department June 24, 2015 proposal included the search and production from the
approximately 55,000 pages records returned former Secretary Clinton. That why the
State Department specifically sought rolling production that tracked the production schedule
the Leopold case. The State Department has not provided single, compelling reason why
the searches and productions from this set records should now stayed. the State
Department cannot meet its obligation that itself proposed, should move for relief from that
obligation, not stay the proceedings. For that reason alone, the State Department motion for
indefinite stay with respect the search and production from the approximately 55,000 pages records returned former Secretary Clinton should denied.
Second, the State Department has not provided any evidence whatsoever that
stay necessary for conduct search and produce records from the records returned
Ms. Abedin. The State Department does not identify how many records have been returned
how long will take for review such records determine any are responsive Plaintiff
FOIA request. Nor does identify whether such processing these records will conflict with
other matters. The State Department merely states that scheduling searches documents
provided State former employees, including Huma Abedin, likely issue
several cases. Defendant Motion Stay Pending Resolution its Motion for Designation
Coordinating Judge
10. addition, the State Department has asserted other litigation that has
obligation search records returned Secretary Clinton top aides, including those Ms.
Abedin. See Joint Status Report, Judicial Watch, Inc. U.S. Dep State, Case No. 15-692
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Case 1:15-cv-00684-BAH Document Filed 09/21/15 Page
(APM) (D.D.C.) (July 29, 2015) (ECF No. 11) n.3. Defendant maintains that reasonable
search only requires search the Clinton emails. While true that Defendant has
agreed additional discrete search specifically, search any emails that has received
from Ms. Mills, Mr. Sullivan, and Ms. Abedin did not because believes the FOIA
requires such search. Defendant Opposition Plaintiff Motion Allow Time for
Limited Discovery Pursuant Rule 56(d), Judicial Watch, Inc. U.S. Dep State, Case No.
14-1242 (RCL) (D.D.C.) (Sept. 18, 2015) (ECF No. 27) Despite the fact that had
obligation under FOIA so, State was willing stay summary judgment briefing and ask
the Court set schedule allow search those documents for records responsive the
FOIA request, notwithstanding that those records were not State possession and control
the time the FOIA search was conducted. see also Defendant Motion Stay Pending
Resolution Its Motion for Designation Coordinating Judge, Judicial Watch, Inc. U.S.
Dep State, Case No. 14-1511(ABJ) (D.D.C.) (ECF No. 17) State willing search
[these records] Plaintiff wishes, notwithstanding that those records were not State
possession and control the time the FOIA search was conducted.
11.
Judicial Watch seeks less and more than what FOIA requires. the
State Department position that must search the records returned Ms. Abedin satisfy its
FOIA obligations, the agency should say so. Judicial Watch would then amenable
discussing reasonable schedule for completion this task. the State Department disputes
that has obligation search these records, should say well. Staying this action
indefinitely that coordinating judge can appointed oversee the completion task
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Case 1:15-cv-00684-BAH Document Filed 09/21/15 Page
the agency disputes has any obligation undertake puts the cart before the horse.2 also
demonstrates that the motion stay unfounded.
12. September 18, 2015, the State Department had filed motions stay only lawsuits, not the identified its motion for coordinating judge. those motions,
have been denied. See Minute Order, Judicial Watch, Inc. U.S. Dep State, Case No. 131363 (EGS) (D.D.C.) (Sept. 11, 2015); Minute Order, Bauer Central Intelligence Agency,
Case No. 14-963 (APM) (D.D.C.) (Sept. 16, 2015); Minute Order, Joseph U.S. Dep State,
Case No. 14-1896 (RJL) (D.D.C.) (Sept. 10, 2015); Minute Order, Citizens United U.S. Dep State, Case No. 15-374 (EGS) (D.D.C.) (Sept. 11, 2015); Minute Order, Judicial Watch, Inc. U.S. Dep State, 15-692 (APM) (D.D.C.) (Sept. 16, 2015); Minute Order, Citizens United
U.S. Dep State, Case No. 15-1031 (EGS) (D.D.C.) (Sept. 11, 2015). Only one motion has
been granted, and that ruling was issued before the requestor even filed response. See Minute
Order, Judicial Watch, Inc. U.S. Dep State, Case No. 14-1511 (ABJ) (D.D.C.) (Sept. 10,
2015). second was granted part and denied part. See Minute Order, Citizens United
U.S. Dep State, Case No. 15-518 (ABJ) (D.D.C.) (Sept. 18, 2015). third being held
abeyance. See Minute Order, Judicial Watch, Inc. U.S. Dep Justice, Case No. 15-321
(CKK) (D.D.C.) (Sept. 2015).
13.
Although the State Department downplays its motion, not only seeks
order designating coordinating judge, but also order transferring ongoing FOIA cases
pending before district judges whomever designated the coordinating judge. This the State Department disputes that has obligation search these materials, but
asserts that will voluntarily, has provided assurances this effect. voluntary
search also would raise substantial questions about this Court jurisdiction adjudicate issues
about the scope the State Department search and any claims exemption.
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Case 1:15-cv-00684-BAH Document Filed 09/21/15 Page
coordinating judge will then decide common legal, factual, and procedural issues. The law
could not any clearer that one district judge cannot order another district judge take action case pending before that judge. See, e.g., Klayman Kollar-Kotelly, 2013 U.S. App. LEXIS
10148 (D.C. Cir. May 20, 2013); McBryde, 117 F.3d 208 (5th Cir. 1997). result,
highly unlikely that the State Department will prevail its motion for coordinating judge.
There reason stay this action pending ruling the State Department meritless
miscellaneous action. See also Respondent Judicial Watch, Inc. Motion Dismiss, or, the
Alternative, Opposition Designation/Transfer Motion, U.S. Dep State FOIA
Litigation Regarding Emails Certain Former Officials, Case No. 15-ms-1188 (Unassigned)
(D.D.C.) (ECF No. 24) (Sept. 14. 2015).
WHEREFORE, Judicial Watch respectfully requests that the motion stay denied.
Dated: September 21, 2015
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha (D.C. Bar No. 995749)
JUDICIAL WATCH, INC.
425 Third Street S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.
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Case 1:15-cv-00684-BAH Document 11-1 Filed 09/21/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 15-cv-684 (BAH)
[PROPOSED] ORDER
Upon consideration Plaintiff Opposition Defendant Motion Stay Pending
Resolution its Motion for Designation Coordinating Judge and the entire record herein,
hereby ORDERED that:
Defendant motion for stay DENIED; ORDERED.
DATE:
The Hon. Beryl Howell, U.S.D.J.